Citation Nr: 1319084	
Decision Date: 06/12/13    Archive Date: 06/21/13

DOCKET NO.  11-29 833	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to service connection for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

T. Adams, Counsel







INTRODUCTION

The Veteran served on active duty from August 1955 to September 1959.

This case is before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.

The Board has reviewed the Veteran's physical claims file, and his electronic file through the "Virtual VA" system, to ensure a complete review of the evidence in this case.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDINGS OF FACT

1.  The Veteran served as an aircraft mechanic during military service in the U.S. Air Force, and was exposed to such acoustic trauma as jet fighters and bombers during service.

2.  The record contains competent medical and lay evidence indicating that the Veteran has bilateral hearing loss disability according to VA standards, which is causally related to his military service.


CONCLUSION OF LAW

Bilateral hearing loss disability was incurred in active military service and service connection for this disability is warranted.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100 , 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012).

Given the favorable disposition of the Veteran's claim, the Board finds that all notification and development action needed to render a fair decision on these aspects of the appeal has been accomplished.

II.  Service Connection

Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service.  38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012).  In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability.  See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology.  Barr v. Nicholson, 21 Vet. App. 303 (2007); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999).  Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.  Hickson v. West, 12 Vet. App. 247, 253 (lay evidence of in-service incurrence is sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b).  

Certain chronic diseases, including sensorineural hearing loss, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service.  See 38 U.S.C.A. §§ 1101, 1112, (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012).

Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d) (2012).

Lay evidence has been held to be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  Lay persons can also provide an eye-witness account of an individual's visible symptoms.  See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that a layperson may comment on lay-observable symptoms).

Competency of evidence differs from weight and credibility.  The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted into the record.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").

The Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331, 1137 (Fed. Cir. 2006).  Factors for consideration in assessing credibility include a showing of interest, bias, inconsistent statements, consistency with other evidence, and a lack of contemporaneous medical evidence, although that alone may not bar a claim for service connection.  Buchanan, 451 F.3d at 1336-37; Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996), superseded in irrelevant part by statute, Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096  (Nov. 9, 2000).

In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994).

The Veteran claims that he has hearing loss due to acoustic trauma during service as an aircraft mechanic.

The Board finds that the medical evidence of record supports the Veteran's contention that he has a bilateral sensorineural hearing loss disability that is causally related to noise exposure he experienced in service.  The Veteran reported a history of military noise exposure due to service, and the Veteran's DD Form 214 states that the Veteran's military occupational specialty was as an aircraft mechanic.  According to the Veteran, he had in-service noise exposure due to working on jet fighters and jet bombers without the benefit of hearing protection.  In the February 2010 rating decision on appeal which granted service connection for tinnitus, the RO conceded exposure to acoustic trauma based on the Veteran's service as an aircraft mechanic.  As such, the Board finds that exposure to acoustic trauma in service is consistent with the circumstances of his service.  38 U.S.C.A. § 1154(a) and (b) (West 2002).

Impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when the speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385.

The Veteran's STRs are void of any diagnosis of bilateral hearing loss.  On entrance examination in August 1955 and at discharge examination in September 1959, whisper voice testing revealed hearing revealed that hearing was 15/15 bilaterally.  However, a September 1959 report of medical history reflects a complaint of ear, nose or throat trouble.

VA outpatient treatment records include a December 2008 audiology consult report which shows that the Veteran noticed difficulty hearing during the past ten years.  He reported a history of noise exposure to jet noise during service and had a thirty-year history as a truck driver with little or no hearing protection.  The results of the examination were found to be inadequate for rating purposes.

On VA audiological evaluation in November 2009, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
30
30
45
55
60
LEFT
20
25
50
75
75

Speech audiometry testing was not conducted using the Maryland CNC Test and the evaluation was found to be inadequate for rating purposes.

On VA audiology examination in February 2010, the Veteran presented with a history of military acoustic trauma from jet aircrafts as an aircraft mechanic without hearing protection.  The examiner indicated that acoustic trauma during service was conceded.  As a civilian, occupational noise exposure was unremarkable; he drove a dairy truck, was involved in dairy pasteurization, and worked as a supply officer for a fire department.  Recreational noise exposure was also unremarkable.  





On audiological evaluation, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
25
30
40
55
60
LEFT
25
30
45
70
75

Speech audiometry revealed speech recognition ability of 96 percent bilaterally.   The examiner diagnosed bilateral sensorineural hearing loss with tinnitus and opined that it is less likely as not that the bilateral hearing loss is caused by or a result of military noise exposure, based on the rationale that the Institute of Medicine in a 2005 study on military noise exposure stated that there was no scientific evidence to support delayed onset of noise induced hearing loss.  However, the examiner opined that it is at least as likely as not that the Veteran's tinnitus is caused by or a result of military noise exposure. 

In this regard, the VA audiological examiner based the opinion, in part, on the absence of any hearing loss during the Veteran's service and did not provide any reason why the Veteran's in-service acoustic trauma was not a source of his current bilateral hearing loss; the Board points out that the VA audiological examiner conceded that the Veteran had noise exposure during service.  Hensley v. Brown, 5 Vet. App. 155, 159 (1993) ("[§ 3.385] operates to establish when a measured hearing loss is...a 'disability' for which compensation may be paid, provided that the requirements for service connection are otherwise met...").  Further, in Hensley, the Court indicated that a veteran need not have met the requirements of 38 C.F.R. § 3.385 while in service, only presently.  Hensley, 5 Vet. App. at 158-59.  See also, Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  The VA examiner's conclusory opinion based in part on the absence of documented hearing loss at discharge from service does not mean that there is no nexus between the Veteran's current hearing loss and his in-service noise exposure which lessens its probative value.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (finding that most of the probative value of a medical opinion comes from its reasoning).  Additionally, the same examiner related the Veteran's tinnitus to his service based on military noise exposure.  In this regard, it seems counterintuitive to relate the Veteran's tinnitus to military acoustic trauma while alternatively finding that his bilateral hearing loss is not related to military acoustic trauma, especially considering the fact that the examiner has identified no other etiology for the Veteran's bilateral hearing loss.

In addition, the Veteran consistently and credibly contended that in-service noise exposure caused his bilateral hearing loss and that it has been continuing to the present.  See Layno v. Brown, 6 Vet. App. 465 (1994).  Moreover, the Board finds that the examiner's opinion regarding hearing loss was apparently based, in part, on an erroneous assumption that service connection for this condition required a documentary showing of hearing loss in service.  Simply put, had the VA examiner known that such a documentary showing was not required, the Board believes that the VA examiner would have opined a relationship between hearing loss and the Veteran's period of active service considering that the examiner found that the Veteran's tinnitus was related to acoustic trauma during his service.  Thus, the Board finds that to the extent it is probative, the February 2010 medical opinion actually supports the Veteran's claim.  The Veteran is also competent to observe the presence of bilateral hearing loss during and after his service and the Board finds his account of in-service onset of bilateral hearing loss to be additional probative evidence in support of his claim.  The Veteran's statements as to his symptoms and experience additionally support a finding of both chronicity and continuing disability.  Consequently, the competent and credible medical evidence of record supports the Veteran's claim.

The evidence in this case is at least in equipoise with regard to the cause of the Veteran's current bilateral hearing loss.  Accordingly, service connection is warranted for the Veteran's bilateral hearing loss disability.






							(CONTINUED ON NEXT PAGE)

ORDER

Service connection for bilateral hearing loss is granted.




____________________________________________
Michael J. Skaltsounis
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs